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California 86, Romer 19, Us 16, United States 13, Mr. Cooper 10, Baker 10, Doma 8, Reinhardt 7, Mr. Olson 6, Crawford 6, Washington 5, Colorado 5, Smith 4, Pentagon 3, Afghanistan 3, Virginia 3, Hernandez 3, Kennedy 2, Hawkins 2, Johnson 2,
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  CSPAN    Public Affairs    News  News/Business.  

    March 25, 2013
    5:00 - 8:00pm EDT  

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as opposite sex couples and wouldn't allow for some kind of understanding as to what has happened? >> again, it has only been, i believe, since 2003 that california has is that the robust domestic partnership regime and how foreign is equivalent to civil regimes elsewhere. it is in all the rights to domestic partners. it does not give the name. we said earlier that it cannot call themselves married. they can call themselves whenever they want. >> not if they apply for a passport. >> of their married the cannot do that. >> it is a federal crime.
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merit on a federaler o form? -- married on a federal form? sides agree both that the word marriage matters. the gays and lesbians as a degradation of some sort of recognition. those of us supporting to a traditional marriage see the word marriage draws on its that is tiedole to procreation and child rearing. we want men and women to understand that marriage is the ideal context in which to raise children, and in a sense to read the fine marriage in a way that eliminates the essential components. >> you have a bunch of people out there raising children right
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now cannot get married. if you think marriage is an important thing to happen your parents, if you think they would benefit from having unmarried parents. hawthorne and they have all the rights but not the label. >> even then they do not give federal rights. >> that is a separate question. >> butright now they do not get any. there is no relationship recognition at all. in order to avoid the speculation that straight people are going to be more likely to have children and otheir household without being married, how do make that happen as? i do not understand it. street people will have more kids about getting married because you're letting gay people getting married is speculation at best and is
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offensive. people are so unhappy with the people getting equality they will stop getting married. >> that is not the argument. >> what is? thatt me agree with you the interest of the kids being raised by same-sex couples are a factor in the calculus. did the argument is not that people are going to be offended by same-sex couples. the argument is that the redefinition of marriage away from its core components says marriage is not about procreation at all. you have millions and millions a potential victims of classic marriage culture. if we do not restore that, in this country is doomed.
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the >> if you think that applies the same whether you have civil unions or an institution called marriage for same-sex couples and? you think the tipping point is what it is called. think it is a significant defining point. there is this inconsistency in the arguments that i hear in that the kids of gays and lesbians by any measure do as well or better than anybody else. on the other hand, and this is not married gays and lesbians, but somehow there's so hurt. using marriage is the most important thing.
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-- use a marriage is the most important thing. that is the harm. the legend and children children living -- it is illegitimate children living with their parents. they do not have this option and being married. >> what is the big deal? if gays and lesbians have all the bright except being able to and theyled married say we want to be called married in california has given them all the legal rights, what is the big deal? q. has the burden of showing what is the big deal? the first conclusion you draw is that there is only one remaining potential the stateion for what
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is doing. that is to maintain the idea that message that same-sex relationships are less valuable. that was off the table. we won that 10 years ago. >> qe1 in the case of a criminal case -- qe1 that in the case of a criminal case. >> it stands for more than that. >> you may be right. >> i would be very surprised. >> is reading of the majority opinion was quite accurate. .> it was a criminal case it certainly was. moral disapproval. what is the big deal? where do you stand?
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>> the use of the word marriage masters. it matters because we have a concept of marriage that has existed throughout western andory of a man and a woman it exists for a purpose. i am repeating myself. >> to whom does it matter? >> society in order to encourage men and women to have and raise children in the best contacts possible. >> that is why the proponents are injured by the non- enforcement. >> if you are trying to tie in a standing question, the proponents are standing in the position of the state. you will not mean to. the state has interest in defending the law. are startingts
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interest to the state. the concern is about how society and the institution of marriage will be damaged by this radical definition. >> you agree that moral disapproval as off the table? we are not going to criminalize a homosexual activity. we cannot do that. we disapprove of its. we are not going to allow same- sex couples to call themselves married because we disapprove. >> moral disapproval has nothing bases for these defending traditional marriage. are there some voters who may have boded because of
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proposition 08 because of moral disapproval? it goes both ways. of course people will have a mixed motives. think the states in the house report and on the floor are off the table? not consider them? of course a lot of this will tie into which standard of review the court and adopting. when you have plenty of statements in the congressional record discussing the importance of uniform eligibility it is weird cherry picking to say we will give decisive wait to these one or two or three statements. >> one or two or three? all my goodness. the place is replete with expressions of homosexual update
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is something that ought to be condemned. not the gist of that debate. >> there were lots and lots of gay-rights supporters who voted for the defense of marriage at who had strong support for people like the game right. the numbers are something like 87-13 in the senate incomparable in the house. the idea that it drove the adoption of doma -- >> it was an election year and a people do not have the political power to protect themselves. >> i want to ask whether, are there any intermediate positions between striking doma down entirely end up holding?
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i do not think so. >> you said that there are different cases. they are. statesstion is, do these have the authority to retain the traditional state of marriage? not that they have to. need a? it is the question on both. >> not asking you to yield their position. are there any interim positions in the case that the court could find between on the one hand doing what they suggested, to stay -- say the states have the full power to uphold or to change or do anything was same- sex marriages?
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and what the strongest view of the challengers is in prop. 8 our calls distinguishes unconstitutional. is a standing argument. >> it would be in a weird way. it would probably mean that there be marriage equality restored in california. >> why? quiet the judgments stays in effect. the that is clear at all. it is more than that. >> what you think the governor will do? be weddingere would bells. >> this would be nothing to do
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that. the merits in the case, there is a narrower grounds which were basically judged by reinhard. california created a separate institution of domestic partnership. be that the would state that has done that has essentially disclaims any meaningful state interest in "m" wordg to hold the for same-sex couples. there is no real meaningful distinction.
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>> the question of whether the other 35 states have to. the other one would be taking california and in ticket back. >> what did he say? together.n -- woven them together. they're always driven by coherent. >> interestingly, the defenders of do andma to prop 8 both heralds -- doma and prop a hero how the world has changed since doma was passed.
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and how, regardless of what power the gays and lesbians had in 1996, they surely have more power now. that argument is in boats at the conclusion of the reply brief of chuck cooper representing the prop. 8. what kind of impact do you think that clear change in the political world is likely to be had? >> it makes manifest that rather than imposing on the country
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another roe versus wade, this is a matter that is being addressed through a robust of a credit debate. the debate will continue. i have no illusions that my preferences are going to prevail everywhere. >> the genius of federalism is that things work out. and satisfies our people's interests. cooler is more a sense of this has been a fair fights. process is also far better coming up with accommodations, protections for religious liberty, all sorts of compromises and the declaration who right which anyone
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supports traditional marriage is the equivalent. >> do you think keith precludes the statute you refer to? >> look. says therhetoric position that president obama is akin to year ago racial bigotry. look. we know how to deal with racial bigot in this country. deprive them and of all sorts of opportunities. that is the path of which things will be headed quite quickly. we welcome that. and not be good for the country. of aere is a declaration fundamental constitutional right to marry a person of the same- sex. --20 talk about the analogy,
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can you talk about the analogy? >> the change a popular opinion will have on the justices. you have one hypothesis is that the election returns. that is a cliche. they will be comforted by the fact that they're not getting too far ahead the american people. then you have the alternative which is being strongly argued by the other side. this is just a moment not to get involved. way you can tell what will affect which the justice which way. in terms of the roe v wade specter out there and the thision of continued war, is backed up empirically. these issues are fundamentally different in that because
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unlike abortion, and there is no victim they believe is being murdered. people very easily accommodate themselves to allow everybody to have the same opportunity to enjoy the benefits of married. you see this in state after state. people just calm down after a couple of years. if the supreme court were to say everybody has a right to marriage equality there will be some hub of about that. i do not think it'll be remotely comparable to the roe v wade situation. >>, may be right that the aftermath of a role like ruling will be very different in the context of same-sex marriage and an abortion. it may play out over the decades in a tax on traditional
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religious believers. qualify for can you a grant or a scholarship? can you get a government job if you hold this position that is suddenly declared bigotry? it would be very contentious and divisive process. i agree that it might well play out in a very different way in the role it has played out. >> audience, next chance for questions. >> wow. >> let me get this out there. whalen, get the sense from seeing the amount of young people in the room that he may be in the minority, just guessing. i am glad you here.
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young people do not see what is the issue. that said some people may even say what is the big deal about getting married but that is another radical thing i will i get into. >> we'll have 10 minutes. >> you talked a lot about tradition and a radical notion. how does this relate to the loving versus virginia? my question is for paul smith. what is the primary purpose of the petrol government incentivizing marriage in the first place for anyone? if same-sex couples can show they're able to fulfil the purpose, what a special or unique about same-sex relationships that should preclude the federal government from incentivizing any and every
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other relationship that could fill the purpose such as brothers and sisters that want to live together and file a joint tax return? comparedtators have this to decisions such as plessey and brown and their significant to the african- american community. how do you think the court will weigh the legacy of those cases in their decision? three great questions. the panelists all answer however they want. anti laws or recognized as a to the traditional understanding of marriage. they were phrased that way. were in positions and a restriction on top of what marriages.
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by contrast this has adhered into what marriage always has been. it involves a radical redefinition to say it is not a male/female union. >> the questions involved the idea that the federal government has a long history of incentivizing marriage which is complicated. the basic posture of the federal government has been not to do anything about marriage except except state decisions. there are some benefits that help married families and windows and things like that. there are some taxes that go up. marriage it encourages economically is the complicated questions. why should whatever that is applied to people who want to marry their family members, wise? whenever you start getting into these parade of horribles, whether prostitution or polygamy are incestuous, and there are other interests at stake.
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it says is the clearest example. the reason why it prohibits is they are both psychological and physical health reasons why that is inherently and help the of the situation. the state has a legitimate interest unrelated to anything we have been talking about today in regulating that. >> how prejudice of you to deprive adults to believe that their happiness depends on airing the assemblies from from preventing the assemblies from doing what they are able to. >> they're willing to take the risks. who are you to say they can. , it is not a slippery slope argument appeared as a matter of history, polygamy is up the slope of from same-sex
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marriage. we have had plenty of examples throughout history. there's a distinction between dwo and three and less remove to redefine marriage as a same- sex union. >> we will look around. about these talk limitations, that whole case of plessey in versuseparate but eq, california will have these two institutions. it is very reason it did of the separate but equal concept. >> i wish there was the more time getting the law right and less time worrying about what their legacies might be.
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>> thank you. >> we were talking about political power earlier. the argument was brought up that there are specific ones that .ave political power presently should those protections at some point been taking away when they are seen to have enough political power? >> that is a very interesting question of what i have no view. i am a skeptic of the legitimacy of this high scrutiny enterprise. you all for being here. some opponents of marriage equality say that same-sex marriage bans are not discrimination because straight men cannot marry a man and a man cannot marry men.
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opponents the marriage equality for interracial couples said it is not discrimination because of blacks cannot marry white and white cannot marry blacks. how would you respond to those arguments? >> that is the kind of argument that is made and all of these cases. it does not work. the texas, sexual conduct lot and not discriminate against gay people because it also prevented shipment from getting together with other straight men. it is idiotic. the law specifically target a group of relationships you have the same orientation that want to form these marriages. there's no serious arguments that now stands that these cases ought to be analyzed based on sexual orientation. we're not going to draw this
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between conduct and status. gay people have both a concept and a status. we will not let that word anymore. >> many supporters argue that traditional marriage laws are better understood as discrimination on the basis of sex rather than sexual orientation. arguments are not the most effective arguments to make. they fail to get to what ought to be at the core, what is marriage? what is the purpose? if you understand that everything else falls in place. >> where clinton have to wrap it up because we're getting to 530 -- we are going to have to wrap it up because we're getting to 5:30. my questions about the marriage institution. way that yout, the look at the history of marriage institutions to me is not a
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science. it is not a cultural science. it is hypocrisy. the way you that you're saying if marriage social goal is to create more human beings, and why do we even let people who do not conceive of be married? you are not even let him be a bull or homosexual people to be married. ask them why we can help society? thing is the way your saturdays in our society duse just a man and women can get married to me it is the same not to a segregated
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society. based on what? are social goal of marriage is to reproduce -out- social a marriage history -- social goal is for marriage to reproduce? >> the time is up. we really need to get this down. to speak as to try quickly as possible. i have a lot of sympathy for mr. for letting it take its course. how deep into people who say this is taking too long and all of the gay couples in states where they did not have these rights, how you answer that/ what is your response to that? it is an anthropology that all social scientists recognize, people on the left, and this is
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not something i have come up with. this is the consensus until it became fashionable to promote this new cause. the point is the tradition of marriage has developed exactly as it has with the opposite sex union. orwellianhave fertility passes. the fertility tests they would be contemplating will be sending you see in a totalitarian regime. it to be very inexact anyway. -- it wouldsimple not be very exact anyway. is not a simple matter. the law generally presumes fertility. a couple that is infertile is often one person who is fertile and it enters the person does not have children outside marriage. -- ensures that the person is
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not have children outside marriage. the question about whether it is too long presupposes there's only one person thaone answer tn happen. do not be sufficient answer to let it be worked out here because it doesn't, that is what should happen. it is not a matter of anything taking too long. it is a matter of people in different states working out how they want to address this matter. >> this is one of the rare moment in history where a new minority group has come along and made a very fundamental claim that says it is time for us no longer to face these basic forms of discrimination. it exists for us as much as anybody else in this country. they are entitled to call on the courts to do that even though we all in green that this is democracy. >> thank you very much. -- even though we all agree that
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this is democracy. >> thank you very much for staying with us this long. [applause] [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2013] >> after hearing from a few legal scholars we go live now to the supreme court or people have been waiting for days to witness the same-sex marriage cases.
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tickets are technically free but the associated press rice said the first people who arrived on thursday are being paid iran $6,000 by different groups interested in getting seats. this is the court review of same-sex marriage laws. the christian science monitor right sometimes huge cases end on a whimper rather than a game. despite the anticipation, it is possible the justices could decide the controversial case without ever reaching the court issue of whether proposition 8 in california and the federal defense of marriage at violate the rights to same-sex couples. before they can take up those questions, they must first agree that the parties before
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them have the necessary legal standing to argue the cases and that the court itself has jurisdiction to decide them.
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>> where does every part of history here. >> a rainy day as people wait to
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get tickets to the same-sex marriage cases. as the court considers the case, we will cover a couple of rallies still with these issue. we're also covering the rally with the national organization against the marriage. if you want to hear the arguments in the ballot initiative, we will have it here on c-span tomorrow. etsthen your calls and tweak
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telling us what you think. jackson died of apparent heart attack before injured johnson takes office. it is later dismissed as fall- off from a scandal. during the next administration, and duncan van buren is the white house hostess for her father-in-law. questionsclude your and comments by facebook and twitter light at 9:00 eastern on c-span and c-span3. >> a bit of news from capitol hill. officials say south carolina's
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center and sense to announces retirement tomorrow. he is chairman of the senate banking committee. thehington journal" is on argument and same-sex marriage. we will show you part of the oral argument in the ninth said the court of appeals that led to the courts considering the proposition 8 case. >> the united states court of
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appeals for the ninth circuit is now in session. >> please be seated. good morning, ladies and gentlemen. we will proceed with this morning's calendar. perryo cases -- first is v. hollingsworth and the county of imperial. please proceed. >> good morning your honor, may it please the court, my name is charles cooper. i represent the appellants in number 10-16696. >> nice to see you again, mr. cooper. >> it's a pleasure to be here, judge reinhardt. thank you very much. the appellants are official proponents of proposition 8 and the official campaign committee, protectmarriage.com. there are two jurisdictional issues before the court this morning. the first one is whether this court has jurisdiction to review the merits of the district -- the fundamental question is whether the definition of
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marriage, that moment is issue is for them to solve as they did in enacting proposition 8 what did they take this out of their hands and theded for them as plaintiffs argue here. >> with the united states>> as interpreted by the u.s. supreme court? 1890, right? >> very possibly, your honor, yes, very possibly. >> and how's this different?
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nothinghonor, this is like the, for example, the racial restrictions at issue in loving where there is simply no legitimate rational basis whatsoever on any purpose of marriage that one could possibly conceive to deny the right of a mixed race couple to marry. on every basis on which one can identify a purpose of marriage, a mixed race couple satisfied those purposes. so the question is -- >> you suggest that baker would mandate that the state has an absolute right to prescribe the conditions upon which the
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marriage relationship between its own citizens should be created, correct? >> not an absolute right, your honor. we agree that that right is limited by whatever restrictions the united states constitution may place on it. v.ok, so then loving virginia falls right into that restriction? >> directly, your honor, and the supreme court in loving said that the racial restriction violated the central meaning of the 14th amendment, both its due process clause and its equal protection clause. >> so if i agree with that, then what do i say is the notion when confronting turner v. safely? >> the case dealing with the right of prison inmates -- >> the warden, right. >> to marry. your honor, the central, i guess, point that we want to
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advance here is this -- what is the distinguishing characteristics of opposite-sex couples that are relevant to interests that the state has authority to implement that are -- >> are you arguing to me that it is enough for a rational basis for the federal court to get involved in that right of marriage? test are arguing that the that applies here is a rational basis test, and that if there is any rational basis for the opposite-sex, the opposite-sex traditional definition of
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marriage then that traditional definition of marriage must be upheld, and only if this court concludes that there is nothing to say in favor of the definition of marriage that has prevailed in this country and in all places essentially at all times since time immemorial -- there is nothing to say in defense of it -- there's no rational basis for it -- then this court would have to strike it down but that is the test that we submit to you that applies, your honor. and, we believe that there is clearly a rational basis justifying the traditional definition of marriage. the key reason that marriage has existed at all in any society and at any time is that sexual relationships between men and women naturally produce children. society has no particular
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interest in a platonic relationship between a man and a woman, no matter how close, no matter how committed it may be or emotional relationships between other people as well, but when a relationship between a man and woman becomes a one, society immediately has a vital interest in that. for two reasons -- one, society needs the creation of new life for the next generation, but secondly, society, its vital interests are actually threatened by the possibility that an unintentional and unwanted pregnancy will mean that the child is born out of wedlock and is raised by, in all likelihood, its mother alone, and that directly implicates society's vital in terms of its immediate interests because society will have to step in and
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assist that single parent, in all likelihood that is what the raisingens, in of that child but as well in the undeniable fact that children raised in that circumstance have poorer outcomes and -- >> that sounds like a good argument for prohibiting divorce but i -- but how does it to having two males or females marry each other and raise children as they can california and form a family
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unit where children have a happy, healthy home? i don't understand how that argument says we ought to prohibit that. >> your honor, the point and the question is whether or not the state of california has a rational reason for drawing a distinction between same-sex couples who cannot, without the intervention of a third party of the opposite sex, procreate and opposite-sex couples who not only can procreate but can do so unintentionally and create unwanted pregnancies. that is not a phenomenon that exists with respect to same-sex couples. we'd be overriding -- >> but what is the rational basis for an initiative that when california law really says that homosexual couples have all the rights of marriage, all the rights of childrearing, all
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the rights that others have, what is the rational basis then? if, in fact, the homosexual couples have all of the rights that the heterosexual couples have? we're left with a word -- marriage. what is the rational basis for that? >> your honor, you are left with a word, but a word that is essentially the institution and if you redefine the institution, if you redefine the change the institution. so it is the -- you cannot separate, you cannot separate the two. the name of marriage is effectively the institution, and the issue here is whether it
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will be redefined, essentially, to be a genderless institution that bears little or bearing no relationship to the traditional historic purpose of marriage, which is -- >> why aren't the merits of this case controlled by romer? after all, before the proposition was passed in california, same-sex couples had the right to marry. the proposition takes it away. isn't that exactly what the proposition in colorado did? >> your honor, in romer, the court was dealing with a sweeping law that placed undifferentiated burdens and disqualifications on homosexuals across the board -- >> so if you take away a bunch of rights that's bad, but if you just take away one right,
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ok? >> your honor, it isn't a question of taking them away. the supreme court -- >> did or did not same-sex couples have the right to marry before the passage of proposition 8 in california? >> your honor, the california supreme court affirmed that they did, yes, and the people of california disagreed with that and the people of california reversed it. >> how is that different from what happened in colorado? a few local communities decided that they wanted to extend preferred status to individuals, homosexuals, gays, lesbians, etc., and the voters of passed a proposition saying you cannot do that, you have no right to do that, stop
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doing that. >> your honor, amendment 2 rendered homosexuals strangers to the law. it essentially eliminated any and all protections for homosexuals with respect to the ordinary pursuits of civic life as the court put it. it was a sweeping, undifferentiating -- it essentially rendered them an isolated class and strangers to the law altogether. the court stressed that it was an unprecedented in our jurisprudence, kind of statute. the traditional definition of marriage, your honor, is anything but unprecedented in our jurisprudence. it has existed throughout the history of this country, it has been the governing understanding and definition of marriage in this state since its founding and basically throughout the country and throughout the world for all time.
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the definition of marriage is anything like, is not anything like the kind of statute that the court was dealing with in romer, and, in fact, in this case, i would submit to you that the question is, your question, your honor, is governed by the crawford case where the court said that it would refuse to interpret the 14th amendment and these are its words "to require the people of a state to adhere to a judicial construction of their state constitution when that constitution itself vests final authority in the people." and so -- >> but you've told us that the people of california could not reinstitute racial segregation in public education. so, we know there are some things they can't do. >> they certainly can't do that.
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>> without flying in the face of the 14th amendment. the romer case opens with a quotation from justice harlan's dissent in plessy, and here's what justice kennedy says -- "the constitution neither knows nor tolerates classes among citizens. those words now are understood to state a commitment to the law's neutrality where the rights of persons are at stake." aren't you flying right in the face of that? >> your honor, if there are no reasons, no rational reasons to distinguish between citizens, then the constitution does not permit the law to distinguish between them and treat them differently. >> but the proponents of the ballot initiative in colorado made the perfectly logical argument that all they were doing was leveling the playing field and justice kennedy said, "that's not right, that's not correct."
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wasn't your honor, it right. they were doing much more than that. they were essentially opening gays and lesbians to private and public discrimination and disabling any governmental body from intervening in that private discrimination. as justice kennedy emphasized, in common, ordinary day civic life from banking to hospitals to hotels to common carriers, all the ordinary pursuits of civic life, homosexuals were rendered strangers to the law. they could be discriminated against in these fashions. that is a far, far more and different thing than simply adhering to the definition of marriage that has prevailed in california and everywhere else since time immemorial.
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and again, the question comes down to this -- are there distinguishing characteristics, relevant to an interest that the state has authority to implement, at work in the opposite-sex definition of marriage, and if there are, then the courts cannot say that acting upon those distinguishing characteristics is invidiously discriminatory. >> let me ask you a question -- >> that's the issue. >> that's a terrific response. let me ask you a question that's meant entirely to be neutral. is it the preference of the proponents, let's assume for the moment that we conclude you have standing and you're here to argue, you're properly here and argue to defend the proposition. >> i accept that assumption,
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certainly. >> do you want us to get to the merits of the issue here? in other words, do you want us to side-step baker? >> no, not at all. your honor, i believe that baker is binding on this court, and my opening legal point would have been that in fact this is not the first court to take up deal with the very 14th amendment issues that the plaintiffs bring here today. in fact, there have been eight appellate courts, state and federal, who have addressed these issues and insofar as they relate to challenges to traditional marriage laws just like proposition 8, and all eight of those courts have
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upheld the traditional marriage laws and have rejected the 14th amendment claims. and one of those cases, your honor, is baker against nelson, a supreme court case that we submit remains a good law, remains binding on this court, and -- >> well there are some differences. it was before romer and lawrence and it didn't deal with the subject of repealing a constitutional right that existed at the time it was taken away. >> that's a fair point, judge reinhardt, that is a distinction with respect to the issue as it came to the supreme court in baker. there had not been the earlier period in which the supreme court had essentially legalized same-sex marriage, so that is a fair point.
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sir,e california court, said, "that's what the constitution says." >> it said that -- >> as citizens, we have to accept that from that moment forward. it was not a matter of pulling rabbits out of a hat, or something like that. they said, "this is what the constitution says." >> your honor, that's fair enough. they said "this is what the state constitution says" but under the california system, it is the people themselves who retain all the sovereign political governmental power and they are free to review that decision, to disagree with it, and reverse it, and that's what they did in proposition 8. and so, your honor, we would submit to you that the case came to the people of california same way the case came to
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the california supreme court -- on review from a decision from the california court of appeals, a lower tribunal, and the california electorate disagreed respectfully with their supreme court and a five, excuse me, a four/three decision, and they reversed it. the federal constitution, and the court said in a state like california where the people retain the ultimate power of government --
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>> well, of course, generally you can amend the constitution. that's true. it depends on the subject and what you're amending. i think that's what judge hawkins was talking about earlier. what is it that you are amending and can you amend that? nobody would suggest that you can't amend the california constitution, no matter how the court had interpreted it, as a general rule. the question is, can you amend something as -- i'm not suggesting it's a fundamental right for purposes of this discussion -- but is there a valid reason to amend this constitution under the standard that we follow? >> well, your honor, i believe that the point of crawford is that the people are free essentially to disagree and reverse their constitution. >> well not anything, as judge hawkins is pointing out, you can't say -- he asked you, i think, twice -- could you say
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we're going to have segregated education? we couldn't say "yes" to that. >> no, your honor, but that's because the federal constitution would have outlawed that quite apart from whatever the california supreme court had to say about it and so it wouldn't matter if the people before a california supreme court decision or after a california supreme court decision. constitutionrnia had provided that there will be racial segregation as you suggest in connection with schools, the federal constitution would outlaw that and it wouldn't matter whether there had been an intervening supreme court decision from california also outlawing it.
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the point really is simply this. if proposition 8 had been enacted before the california supreme court ultimately invalidated traditional marriage, if it had been enacted before that, the constitutional case that would come to you is the same as it is coming to you now with proposition 8 having been enacted to reverse the california supreme court. because, under crawford, the people of california retain the authority to reverse their supreme court unless the federal constitution is violated then and there by what they did. so -- >> if you're taking away a right from a particular class sufficient reason, let's
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to say using the standard, without any reasonable reason, and it's done for a reason that could only be directed at a class in a manner that is, i won't say invidious but in a biased manner, and you can sometimes derive that view of bias from the action in itself. and, you cannot do it, here, you have to take into account all of the circumstances that judge smith mentioned, for instance, you had all of the aspects of marriage other than the title. what is the reason for wanting to take that title away from a group of people who have enjoyed it? tot's where i think you get the constitutional question.
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ourell, your honor, and submission to you is that the people of california needed no reason beyond the fact that they disagreed that their constitution ordained that result. that their constitution outlawed and invalidated the traditional definition of marriage. >> why isn't that true of romer also then? >> i beg your pardon? >> why isn't that true of romer? the people of colorado decided that they wanted to do this and that's what they wanted -- just the way the people of california did, but that there is a limit on that and it doesn't have to be in the federal constitution except that there has to be a rational basis for it and it can't be related to bias. >> yes, your honor, that is true and so if proposition 8 was coming to you without there
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having been this previous period in which california had approved of same-sex marriage, it would come to you in the same constitutional profile that it comes to you now. i guess our point is, it isn't changed because there has been this previous period where the california supreme court has interpreted the california constitution to invalidate traditional marriage. interestings an question, i think, in this case. would it really be the same if it stayed -- did not go as far as california had gone. would they be required to go that far? or, is it different when you're taking something away? you can argue that there's no difference and i'm not sure that's a settled question, but i would think that the other side, and i know the city of
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san francisco particularly did, say it's different when you're taking it away than when you're not giving. >> well, and, your honor, i am not, i don't deny that there is some force to that proposition, but i do commend to you the crawford case which we think does support the proposition that the people, they act -- if the california court of appeals had invalidated traditional marriage and the california supreme court had reversed that and said "no, our constitution doesn't do that," no one would say that during the interim that that right had existed and the california supreme court had stripped the people of
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california of it. you,we are submitting to and we believe the crawford case supports is that the people themselves are a tribunal over their constitution standing in those types of shoes. >> could the people of california -- suppose proposition 8, in addition to addressing the subject of marriage, had done what in part the proposition in romer did, which was to disallow civil unions, would you have the same response? would you have the same argument? thatur honor, i believe the argument i'm making here would be the same, but i do recognize that the argument for the constitutionality of a proposition that accomplished that result, or perhaps i should put it, the
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constitutionality of that result would be on different footing than proposition 8 itself comes to you in. >> it sounds like you're a little uncertain if they had added civil unions. what if they had said, "we don't want hospitals allowing visitation with dying loved ones by same-sex partners" and they added that to the proposition. would that put it on shakier grounds? >> this proposition i'm advancing now, no. ae point being that anytime state goes beyond, and here i am assuming that this would go beyond what the federal constitution demands, and if it goes beyond what the federal constitution demands then the people are free, according to the specific language of crawford, having gone beyond the requirements of the federal constitution, a state is free to return to the standard
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prevailing generally throughout the united states. >> so do i understand you to be saying if the proposition had simply done away with civil unions, crawford would say, "that's ok." >> if it had simply done away with -- >> if proposition 8 had simply been addressed to disallowing civil unions, which as i understand it are allowed under california law? if that's all the proposition had said, crawford would say, "that's ok." thees, your honor, to extent that civil unions are not required by the federal constitution. >> what does that mean to the extent that -- does that mean, they could take it away? or they couldn't take it away? >> they would be able to take it away, your honor, unless the federal constitution itself requires the states to afford civil unions to gays and lesbians. >> how does that differ from
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romer? they took things away in romer that aren't required by the federal constitution. so, there's more to it than your answer. >> well, no, your honor, i don't believe that the things were put in place in romer, in fact, i think justice kennedy said, "this wasn't just a repeal of the provisions that had been enacted in denver and other municipalities," and he suggested that if that's all it had been, it would not have been constitutionally objectionable. it went much farther than that, and in going much farther than that, it became constitutionally objectionable. >> i didn't mean for you to stop your sentence. if i could have permission of the presiding judge here, there are a couple of questions that i am particularly worried about. extendedes have not
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domestic partnership rights to homosexuals. do they have a stronger argument for a rational basis than does california? and i want to ask you that straight out because i'm trying to get you to differentiate your argument. it seems to me that your argument can be made as to rational basis if there weren't all kinds of rights already given to those homosexuals and domestic partnership rights. so, i'm asking you straight out. some states haven't done it. do they have a stronger argument then for rational basis than does california? >> your honor, to the contrary, i think they do not. i don't think they have as strong an argument. it would be quite perverse if
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the people of california in enacting and addressing the very legitimate interests and needs of gays and lesbians and their families by enacting domestic partnership laws and going as far as a state can do short of redefining marriage, state insisted in proposition 8 that it not redefine marriage and that to preserve that institution for the specific purposes that it has always served. i don't believe the state, judge smith, has weakened its constitutional position when it goes as far as it can to address the interests of gays and their families -- >> i guess my worry is, and this is what i'm really worried about in your particular situation if i adopt your
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argument, is that i'm trying to find the rational basis in this particular situation. when california has gone as far as it has, what is the rational basis that we really have? i'm wondering if it's just not to maybe market the marriage of a man and a woman -- >> your honor -- >> or promote a special relationship in society? is that enough to meet the rational basis? >> your honor, i believe it is to preserve the institution of marriage for the purposes that it has always served. flownique purposes that from the unique interest that society has that, in turn, flow from the unique procreative, natural procreative capacities of men and women. upheldrts that have
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traditional definition of marriage have uniformly noted that it is entirely rational for, as in fact, the 8th circuit in the bruning case, dealing with a proposition from nebraska that contained identical language to proposition 8 that it was entirely rational for the people andhat state to confer retain the inducements and benefits of the institution of marriage for opposite-sex couples who can procreate, and including procreate unintentionally, creating unwanted pregnancies that threaten society's interests, and not extend, not extend marriage to same-sex couples who simply don't represent that
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societal interest. the interests of society that are vitally implicated by sexual relationships between opposite-sex couples are simply not implicated in the same way. my time is well past -- >> yes, clearly, but i wanted to see if judge smith was through with his questions? >> well, i'll skip the last question. thank you. thinkt question was, you this rationale -- since the judge, the good judge, is giving me opportunity, do you think this rationale would satisfy the more searching form of rational basis justice o'connor elaborated in lawrence? >> your honor, if this case is to be decided by heightened scrutiny, then obviously it is a harder case, but we think it
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does satisfy heightened scrutiny. the essential proposition, your honor, being that the main objection to the rationale that i've articulated here is that infertile couples are nonetheless allowed to marry, and that is true. no society has ever insisted that marriage produce children, but, your honor, the question then becomes how would society draw that line? how would society do that? it would have to have orwellian measures designed to police
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fertility before marriage, orwellian measures designed to presumably annul marriages that are not childless -- we just don't think that -- and those measures would undoubtedly violate the constitutional rights of the individuals involved. so we don't think that any less restrictive method could be, as a practical matter, employed. i appreciate the court's indulgence. >> thank you, mr. cooper. >> i think he indulged me, and i hope you didn't go too long so that he's aggravated with me. thank you. >> well, you didn't save any time, but we'll give you two minutes anyway. >> i appreciate that, your honor. >> may it please the court, my name is theodore olson. i'm here on behalf of the plaintiffs. it is important to focus on the
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fundamental fact that california has engraved discrimination on the basis of sex and sexual orientation into its fundamental governing charter. the label given to proposition 8 in the official voters' pamphlet said it all. it eliminates the right of same-sex couples to marry. this proposition marginalized and stripped over one million gay and lesbian californians of access to what the supreme court of the united states has repeatedly characterized as the most important relation in life. >> mr. olson, then you do think there's a difference between taking the right away and not affording it in the first place? >> yes, we do, judge reinhardt. states what the united supreme court said in a case going back to reitman v. mulkey in 1964 where the california
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citizens acted through this process and took away rights with respect to discrimination in housing, and that is what the supreme court said in romer v. colorado, that it does make a difference. now, i don't think as an original matter that it would be constitutional if congress had enacted proposition 8 five years ago before the in re marriage cases, but i think it makes it worse, and that's what the united states supreme court has said, that taking away of rights in that context enhances the effect of the constitution -- of the purported constitutional change. >> what's your answer to the case that mr. cooper referred to several times? it's the one about the -- it was busing and methods of bringing diversity to the
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schools. >> that's the crawford case. >> yes. >> what the crawford case did was say that to the extent not required by the constitution, remedies for constitutional violations could be restricted by the people of the state of california, but that doesn't change anything. i heard mr. cooper mention the crawford case five times, not once anywhere in the crawford case does it suggest that an initiative measure somehow rises above the 14th amendment to the constitution of the united states, and that's certainly what the reitman case held and that's certainly what the romer case -- >> are you suggesting then that a gay marriage is required by the constitution of the united states? >> what is required by the constitution of the united states is the fundamental right of its citizens to marry. now, mr. cooper defined that as it has always been between a man and a woman, but the united
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states supreme court has never said that. what the united states supreme court has said in fourteen cases involving the right to marriage, in the context of abortion, in the context of prisoners, in the context of contraception and in the context of divorce, that the right to marry is an aspect of the right to liberty, privacy, association and identity. outhat i'm trying to find is, is your argument here in response to crawford that there is a constitutional right to gay marriage? do we have to reach that point because what you're answering is that they are taking away a constitutional right, and if that's your answer, fine. if not, i'd like to know that also. >> my answer is that they are taking away a constitutional
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right given by the state of california, recognized by the state of california. that in and of itself makes proposition 8 unconstitutional under romer and reitman. but, i would also say, that it is also constitutional -- and i would not call it, judge reinhardt, "gay marriage," or i wouldn't call it single-sex marriage any more than the supreme court of the united states called it interracial marriage. what the supreme court has said fourteen times is that it's a right of liberty, association, privacy -- >> you can say whatever you want but in deciding the case, i think we're entitled to know whether your answer to crawford is that, yes, you can't take away a constitutional right, and this is taking away a constitutional right under the 14th amendment. >> yes. >> ok. >> i would also say -- >> it's dependent on that? >> pardon me? >> it's dependent on our
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finding that they would be taking away a constitutional -- >> no, it is not, because i went on to say that the right to marriage is a right of an individual. and by the way, mr. cooper talks in terms of the right of society, society's interest in procreation. it is not society's right. the rights under the constitution are not the rights of california, they are not the rights of voters of california, they are rights of citizens of the united states under the bill of rights and the 14th amendment. insist california could that something to do with procreation be engraved onto the right of marriage, it could take that away, it could say we don't want, we're over- populated, we don't want procreation and we'll deny people the right to marry. this is not -- this is a fundamental individual right and what the supreme court said, and the reason i'm emphasizing this point, judge reinhardt, because if you look at it from a standpoint of a right of two
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particular individuals, maybe they were mr. and mrs. loving in the virginia case of an interracial marriage. it was marriage. it was their right to get together and what the supreme court said in the griswold case, "we deal with the right of privacy, older than the bill of rights, marriage is a coming together for better or worse, hopefully enduring, an intimate degree of being sacred. it is an association that promotes a way of life" and so forth. this is from the griswold case, one of fourteen -- >> mr. olson, i'm not trying to express a view on gay marriage or any marriage at this point. i'm trying to find out how far we have to go if we are to accept your view of this case. certainly, if we start out from the assumption that everybody is entitled to marry everybody
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else regardless of sex, regardless of sexual orientation, if we have to reach that issue, we would. but, as you well know, as you argued the plaut case, we are advised not to reach a constitutional question unless we have to. i was not planning on reaching that question for you this early in the discussion but it seems to come in relation to how deal with the crawford case and it was for that reason that i was asking you whether in order to distinguish crawford, you are saying that we, it's necessary to take the position that you can only -- the only thing you can't take away as a state is a right under the 14th amendment. >> there seems to me there's two questions in that. how far do you have to go and
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the significance of crawford. you do not have to go any further than the romer case requires you to go. awayomer case says taking the constitutional right of individuals who are homosexuals because of their classification as homosexuals violates the united states constitution even under a rational basis test and i would say, if i get a chance to do that, this is the clearest case i can imagine of heightened scrutiny. but, in addition, to that answer, which i submit is the answer to your question, how far do we have go -- but the additional answer with respect to the crawford case is a completely separate thing, it seems to me, because crawford was saying, yes, the citizens can change non-constitutionally required remedies for constitutional violations. that's different than this. and so, for the crawford case, in my judgment, has nothing to do with this case, and i would be happy to put the crawford
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case against the reitman case, the romer case, the loving case and lawrence v. texas. it cannot possibly penetrate the full weight of those four decisions. and i guess one additional answer, and i think it's important, since i slipped into mentioning the lawrence case. courtited states supreme has determined that intimate sexual conduct between persons of the same-sex is constitutionally protected and the supreme court has said, as i said, marriage is a fundamental right. how can the fundamental right of marriage be taken away by californians from persons because they're engaged in a constitutionally protected activity. how can the constitutional right be taken away because of the constitutionally protected activity. it cannot exist. if you put the lawrence case together with the marriage cases, loving case, and so on
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and so forth, you cannot take away that right, which is not a right of same-sex persons. it's a right of all citizens and it's a right to be with the person that they love, to have an association that they select, to live a life of privacy, to identify themselves as, a self-identification, as justice kennedy talked about in both romer and lawrence. that right cannot be taken away from individuals in this state because of their sexual orientation. it is discrimination on the basis of sex, and it's discrimination on the basis of sexual orientation, and, even under rational basis test, the proponents of proposition 8 cannot come up with a reason -- they've tried various different reasons -- throughout the election campaign and this litigation -- with various different reasons -- they started off with the proposition and it's in the ballot materials that was necessary to protect our
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children from thinking that gay marriage was ok. originalthe rationalization for the statute that was in advertisements and it's in the particular, it's in the ballot measures submitted to the voters. protect our children from thinking that gay marriage is ok. well, what is matter, what is the matter with that? it must be something about gay people that are getting married that would be disturbing to california voters and you have to take that risk away from them. they, they basically retreated from that proposition and it only appears on pages 107 and 108 of the brief that they filed. and basically they are now saying that it might, if gay marriage were permitted -- this is what they say on page 107 or 108 or 109 of their brief -- proposition 8 needs to be enacted because the existence
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of same-sex marriage will somehow -- they don't use the word "somehow" -- will make children prematurely occupied with issues of sexuality. can is nonsense, that you enact a proposition that walls off the citizens of this state from a fundamental right because you're worried that otherwise children might be prematurely preoccupied with issues of sexuality. that, of course, if that was a justification, it would equally warrant banning comic books, television, video games and conversations with other children. >> in deciding -- [laughter] rationalng whether basis saves this proposition, what do we look to? >> well, whether, i would, i am not sure your question is asking me whether it should be rational basis and what would be the justify --
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>> assume it's rational basis. do we look to the record that was made in district court or do the cases suggest to us that we imagine whether there is any conceivable rational basis and apply that. >> it has, the answer is that that is too attenuated. fromto imagine something the sky that someone might conceivably imagine. and the city of cleburne case and the romer case makes it clear -- and justice kennedy in decision for the court in the romer case says we must look further than that. we must look into the reasons and they must make sense and they can't be attenuated and they can't be motivated by fear of people that we don't like or minorities. it's got to be more than that, and, most of all, it has to be rational. and that's why i was looking through the reasons that they've advanced. one is this protect our children -- and we've seen, at least i think it's manifestly clear
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that that is not a rational basis because you can't do that because basically that's based upon the idea that there's something wrong with these people and we must protect our children from them. that won't work. >> suppose, and just assume this for the purpose of my question -- that we were to conclude that this accidental pregnancy argument is in fact a rational basis. the the proponents of proposition or the imperial clerk given up that argument because of the arguments they made in the political process leading up to its passage? >> no, but i think that the court has to look at all of that. in the context -- what the court has said, you have to look at the context in which the measure was passed. now i will say if i move to that point, this concept of rational procreation, what, way that proposition
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-- by keeping individuals of the same sex from getting married, have anything to do with heterosexual marriage. same-sex marriage is not going to discourage heterosexual people from getting married. it is not going to keep them from getting divorced. it is not going to have any effect at all on their choice about having children. on the other hand, the elimination of proposition 8 cannot possibly hurt the heterosexual relationship at all. washis case, the evidence clear from the witnesses in this case that there would be no harm as a result of the elimination of proposition 8 and mr. cooper, quite candidly, when he was asked that question at the summary judgment hearing, repeatedly by the district court, what harm can there be, he said i don't know.
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letwhat he meant, and i'll him speak for himself on this, but what he was saying is that we don't know the impact of allowing same-sex marriage and how it might affect this very important institution of marriage. well, it's a very important institution of marriage because it means a great deal to this citizens of this state. >> you know, people in popular election campaigns make all sort of nonsensical arguments. >> i haven't heard that. >> not to work to vote for someone or to vote for someone. but, you know, my point, my point is this, that, that my reading of these cases suggests that this is a matter of what is referred to as "legislative facts." that it really matters not what a whole bunch of people might suggest one way or another. this is a, sort of a legislative fact thing that we look to. and if, if we can conceive, it can be conceived and argued that there is a rational basis to uphold the constitutionality of prop. 8, that satisfies the test. >> well, i, several answers to
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that. one, this idea of legislative facts means that instead of the witnesses that talked about the history of discrimination, the damage that discrimination has done, the immutable characteristic that we're talking about -- people don't chose to become gay. they have a characteristic which, which this court in the hernandez case and the california supreme court has talked about, and with respect to the immutability, if i can have a slight digression, is that all of the plaintiffs and other witnesses in this case and the experts and the judge's findings suggested that this is a characteristic that's immutable. and we have all of those reasons why -- and the long history of discrimination which mr. cooper stipulated to at the trial -- the damage that's done as a result of the discrimination, all of this requires heightened scrutiny. but if you were to go to, an imagined, at a rational basis
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standard articulated along the lines that you did, which i don't think is the test, i don't think that's at all consistent with city of cleburne and it's not consistent with romer at all. but if you were to say that, what is, what can we imagine, what conceivable thing can we think of that would justify doing the damage that's being done to our citizens in california. what is it? i don't know what it is. >> well, just a minute, maybe i could suggest a couple of things. do you believe that the idea of distinguishing marriage from domestic partnerships in name only in order to promote it as a vehicle for procreation, responsible procreation, an inclusion of one group promotes legitimate government purpose? all things being equal, children are most likely to thrive when raised by father and mother who brought them into
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this world. do you believe that that would survive rational basis review? flatlyould, it's inconsistent with the evidence in this case, number one. number two -- >> well, it's slightly inconsistent with the evidence in this case if you naturally jump to the conclusion that the only evidence in this case is that which the judge has suggested is in the record. >> well -- >> rather than that legislatures do things for their own reasons and then the judge might find if there's evidence for it or against it. but i'm suggesting, now just sit the question, the idea of distinguishing marriage from domestic partnerships in name only to promote it as a vehicle for procreation, all else being equal, children likely to thrive when raised by father and mother who brought them into
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this world, that it is irrational? >> yes. in the first place, mr. cooper specifically said just a few moments ago, the name is the institution. those are his words virtually verbatim. the name is the institution and the witnesses at this trial, the witnesses that came forward and were willing to be cross- examined and were willing to testify under oath, not the law review articles and so forth that were put in by the, by the proponents, but the witnesses that came forward in this case and the plaintiffs and other witnesses in this case talked about what marriage meant to them and what it means in this society as an institution, not just what the supreme court said -- but we had what the plaintiffs said, what the experts said, what the supreme court said and what the district court found and there is nothing that would suggest that children thrive in a better way in that environment. in fact, the plaintiff, the proponents' expert, mr.
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blankenhorn, testified that the children in those relationships would be better off. that we would be a better country, we would be closer to the american ideal, if same-sex marriage were permitted. now, it's easy to say those things. that you have to have, you have a better situation where a child is in, with a, with a mother and a father, but allowing, the other problem with that is that the, the remedy doesn't fit the so-called problem. in other words, restricting marriage to people of opposite sex doesn't mean that there won't be people in same-sex marriages. that california permits that. and the court, there is something like 37,000 children in same-sex households in california today. there are also 18,000 same-sex marriages which are not at issue in this case. it's easy to say that children would be better off in that
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relationship but if you have heterosexual relationships permitted in california and marriages between persons of the same sex, it doesn't change where the children will be raised. if a child is a product of a biological relationship between a man and a woman, that's up to that man and that woman to keep them together. i think judge reinhardt suggested that a better remedy for that would be to prohibit divorce. but that's not something that californians are interested in doing. >> are we free to use anything other than the rational basis test in the ninth circuit? >> oh, yes. i believe very strongly that you are. the hernandez case talks about immutability. thatif to the extent you're, that you're referring to any other aspect of the, the doctrine of heightened standard, i think that it's
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been ventilated and, and the issues that would support an enhanced heightened scrutiny are all present and you would be bound by what the supreme court has said -- >> but, how about our witt case? >> i think, i think the witt case supports exactly what i was just saying. >> the factual circumstance, you argue factual circumstances are different in witt and high tech gays, but i guess do you have authority that the factual circumstances alone would allow us to make a different holding than a prior three judge panel? >> i think that the hernandez case, which is a subsequent decision, already addresses that issue and i think the case that judge reinhardt focused on involving the federal public defender, i think was levenson, also addressed that point. >> it wasn't the case unfortunately but it was an
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administrative ruling. >> well, i thought the wisdom in that case was superb, your honor. [laughter] and the reasoning i think in that i couldn't do a better job in answering the earlier question than the reasoning set forth in writing in that case. bakerth respect to the case, the supreme court has made it very clear that when the facts are different and the precise issue is not the same, sexual orientation was not presented in that case. that was strictly a gender case. not a sexual orientation case. the facts here are different not just the romer situation where california has recognized same-sex marriages and then has taken it away. but california has an interesting crazy quilt system of laws in this state with respect to marriage. you, some people may be married because they're heterosexual and some people may not be married because they wished to
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marry someone of the same sex. some people who were married to someone of the sex may stay married but if they were to get a divorce, they couldn't even remarry the same person and some persons that are out of state and if their marriage is legal outside the state, then they are recognized in california. we have an irrational system here. and, finally, with respect to the baker case, the doctrinal ground has changed because of the supreme court's sex discrimination cases and it's changed with respect to the romer case, and it's changed with respect to lawrence v. texas. what this case comes down to, it seems to me that california has built a fence around its gay and lesbian citizens. arounds built a fence the institution of marriage which the supreme court says, not based upon sex or procreation or anything else, is the most important relation in life. and the citizens of california
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within that one fence, because of their sexual orientation, are denied access to what every other citizen in california has that are enclosed within that other fence. that is a violation of the equal protection clause and it's a violation of the due process clause. >> are we free, in view of the way the supreme court has told us to decide constitutional issues, that the broadest should be avoided, the narrowest should be adopted. are we free to do anything other than decide the issue of whether california's repeal of an initiative constitutes a violation. your closing speech would require a holding that any state that did not permit gay marriage would be in violation of the constitution. there is a possibility, i
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think, in this case of saying that proposition 8's withdrawal of the right of gay marriage gays and lesbians is unconstitutional under the circumstances that they enjoyed that right, that they are given every other aspect of marriage and all that is taken away is the honorific designation. ae we free to go beyond holding, if we were to rule in your favor, a holding that the repeal of the right to marriage, the right to use the label "marriage" and to receive a certificate, that under those circumstances, it's a violation. can we in view of plaut and similar cases go farther than that? >> i don't think, by the way, you mentioned that i was involved in that case. i don't think that case in any way should inhibit you from
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doing what i think is, i think the answer to your question is that you could decide this on the narrow ground that the romer case gives to you, put in conjunction with in re marriage from the california supreme court, but i think this case is, i don't think there's anything in the united states supreme court jurisprudence including the plaut case or anything else that suggests that you can't look at the larger, or the constitutional question which that earlier question is subsumed within. what are the, what has california done? california has taken a class of citizens and put them in a separate category, whether they had a different category before or not. and that that act of discrimination, there's no doubt that it is discrimination. and there's no doubt that it does great harm. the only question is, can it be justified under any standard of constitutional analysis.
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and i submit that it cannot be justified under any standard of constitutional analysis because at the lowest standard, rational basis, you'd have to know what is rational. and all of the arguments that my opponent is making with respect to how valuable the institution of marriage is are not rational when it comes to the reason, the question of well, why did you draw that line? heterosexual people are different than homosexual people. gays and lesbians are different than straight people, to use the vernacular. but that does not mean you can classify them, to use justice kennedy's words in romer and then exclude them from this life, this part of society. so the, the rational basis analysis has to go to the justification for the exclusion. what goal is california trying to accomplish -- and what is has accomplished in proposition 8, does it pursue those goals in a proper way?
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that's where the rational basis falls completely down. you might say left handed people or color blind people, you might make some distinctions, but if you're saying they can't participate in a right because of an immutable characteristic, you have not only a due process violation but an equal protection violation. and ultimately that's the decision i'd like to see this court issue. >> thank you, mr. olson. >> thank you. >> ms. stewart? >> thank you. may it please the court. i want to focus on the circumstances in the context particular to california that show how singularly irrational proposition 8 really is. first, and there are four things. but i, the first i want to talk about is that it, it imposes a special disability on gay
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people for reasons that california has disavowed and attempt tosn't pursue in any other arena. california regulates child rearing and parentage separately from marriage. and proposition 8 has nothing to do with trying to promote one family for raising children over another. besides that, california laws that do govern parenting and child rearing provide in every way, the california law continues to recognize that same-sex couples and opposite- sex couples are the same, for purposes of family and child rearing in every way that matters. as the california court, supreme court held in strauss proposition 8 didn't change any of that. it didn't talk about children. it had nothing to do with the rights of gay people to form and raise families. >> are we talking about a label here? >> we are talking about a label, your honor. but it's a very important label. it's, it's, it does have great meaning, and i think both sides of the table would stipulate to that. and i think the amount spent on this measure is testament to it.
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so that leads to my second point, which is the proposition -- >> the reason i ask that question is, and it follows on a question that my colleague, judge smith, asked the other side and that's this -- is a state which allows, as california apparently does, everything short of a label, in a better position to enact a proposition 8 than a state which allows none of it? >> your honor, i don't think it's in a better position or a worse position, but what i would say is this. i mean we, we agree with plaintiffs and we tried the case with them. that, that denying, treating same-sex couples differently in regard to family is unconstitutional across the board. but what happens here in california when you have the panoply of, of parentage laws and family related laws that treat couples exactly the same, that underscores the irrationality of the measure.
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and, here -- >> how? how? >> because family law in california both recognizes that gay people do procreate, allows them to use assisted reproduction in the same way that heterosexual people do, treats their families the same way for establishing parentage. for example, when it figures out who are the parents of a child, that sex and sexual orientation is irrelevant to the determination. it recognizes that both heterosexual people and sadly gay people as well can be irresponsible and walk away from their children. it doesn't matter how the child comes into the world. parents do that all the time and the state's interest is exactly the same. >> but, but nonetheless if the rational basis is that to do this in name only is to promote it simply as a vehicle for procreation, then doesn't that survive the rational basis test? >> it does not, your honor. for two reasons -- one, if, first of all, same-sex couples do procreate. they don't do it the old fashioned way to use terminology from one of our cases, but they do procreate.
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and, and so, and california doesn't discourage that in any way or say one is preferable over the other. but if you were to think that excluding same-sex couples would somehow encourage heterosex couples to procreate in some different way or to be more responsible for their children, you have to assume that there's some reason that including gay people will make heterosexual people less likely to carry out their parental duties. and the only way you can get there is to assume that somehow the association of gay men and lesbians with marriage taints the institution. and that is not a basis on which equal protection allows the state to enact laws. so i don't think it does work, your honor. it's not rational and it is, the only way it can be understood is saying there's something so wrong with gay people that they put a stain on marriage and they'll make heterosexual people therefore avoid being married. and, just, equal protection
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doesn't allow that. so proposition 8 regulates the title and the stature only as the ballot pamphlet pointed out. and, you know, william eskridge filed a brief on behalf of some law professors and he said something that i think really says it better than i can, which is that the fact that proposition 8 is largely symbolic and leaves rights in place while eliminating stature makes the insult that the measure visits on lesbian and gay couples obvious. what, what prop 8 really is doing is the state commanding that we call gay relationships different even as it treats them the same. and that's kind of the quintessential classification undertaken for its own sake. the third point is that strauss held that the way that proposition 8 did what it did is that it carved out an exception to the equal protection privacy and due clauses of our state constitution. and that's pretty extraordinary. it made our equal protection clause in our state constitution unequal. and romer tells us that with
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discrimination of an unusual character, you have to be especially careful to consider whether it's obnoxious to equal protection. now, any of those features that i mentioned alone would make, i think, the court have to have pause in looking at prop 8. but when you take them together, they leave prop 9 inexplicable by anything other than animus towards the class. but, here, there's a fourth point and that is that the court doesn't have to infer animus. the context of the measure itself and the campaign really demonstrate that the purpose of the campaign was to be sure that proponents avoided associating marriage with lesbian and gay couples because it would demean the institution. it was bias. the voters amended the constitution, the state constitution, to incorporate the measure after the california supreme court rejected it on state constitutional grounds. why? because it demeaned gay people. it treated them as second class citizens. it relegated them to an inferior status. the voters, the campaign didn't
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say to the voters well, gee, the court got that wrong. the campaign said to the voters, we have to put them in an inferior status because if we don't, everybody won't, we need children and everybody else to recognize that same-sex couples are different. they're not the same as opposite-sex couples and they're not ok. and it portrayed opposite-sex couples as traditional and ideal and it portrayed gay couples as a lifestyle that should be kind of kept in private. and the campaign leaders after the campaign wrote an article in which they said they deliberately tapped into voters' limited tolerance for gay people. the campaign went about portraying gay people -- >> we'll give you another 30 seconds. you're over, you voluntarily gave up some time. >> sure. let me just say, your honor, to close with this. proponents say that in order to affirm the district court this court must find that the majority who voted for proposition 8 are bigots and that is not so. prejudice which cleburne defined as the belief that one
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group is less worthy or less deserving than others is not always born of hatred. saidy, as justice kennedy in garrett be the result of simple want of careful rational reflection or an instinct to guard against people that we think are different from ourselves. that sort of intent was what was underneath prop 8. it's plain from the face of it, it's plain from the campaign. and equal protection doesn't allow the state to enact a measure based on a view that some people are unworthy. thank you. >> thank you, counsel. mr. cooper. >> thank you, your honor. just a few moments, if you will please indulge me. first, mr. olson spoke of the loving case at great length. lovingknow, that if mr. had desired to marry mr. jeter,
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that the case would not have come out the same way. we know that with certainty, because baker against nelson rejected that very claim, and it rejected that claim on the heels of loving where the gay couple who brought that 14th amendment loving claim relied on loving very heavily. we also think that mr. olson is simply wrong when he suggests that the baker case did not involve a classification -- a claimed classification based upon sexual orientation, it was just gender. here's what the plaintiffs in baker said -- "there is no justification" -- and this is throughout their jurisdictional statement, your honor -- "there is no justification in law for the discrimination against homosexuals. appellants are being deprived of a basic right, the right to marry. as a result of this deprivation they have been denied numerous benefits awarded by law to others similarly situated --
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for example, childless heterosexual couples." this was clearly a case where they challenged the classification as one based upon sexual orientation as well as one based on gender. the loving case would have been on all fours and would have come out -- excuse me, the baker would have been on all fours with loving, if it were a fact that same-sex sexual relations produced children the same as opposite-sex sexual relations do. then mr. olson would have a lay down case. there would be no basis on which to draw a distinction, to identify a distinguishing characteristic, with respect to any interest the state has the
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authority to implement. there would be no difference. and so the question is does the state -- does society have no interest in that distinguishing characteristic. we submit to you -- >> is there a case that suggests that, or is that good argument? do you have a case to suggest that's the distinguishing characteristic or is that good argument? >> i think it's both, your honor. >> well, i guess i'd like the case. >> the case i am referring to is the garrett case, which sets forward the standard i just quoted, and it in turn is quoting the cleburne case, both of which applied rational basis review and upheld distinctions where they were drawn on distinguishing characteristics. i would also offer to the court as well the johnson against
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robison case, where the court said, when inclusion of one group promotes or addresses a state interest and the addition of others would not, then the state is justified in acting upon those differences and drawing that classification. i would like to also refer the court, very quickly here, well let me just -- >> nothing's been done very quickly here. [laughter] >> i'm sorry? >> i said, nothing's been done very quickly here. [laughter] >> and when you're in the red, that doesn't mean you have that much time remaining. [laughter] >> fair enough. if the court will just give me thirty seconds because this is a point that is clearly very much on the mind of the court and that's the romer case.
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i want to share this passage with you from romer -- "yet amendment 2 in explicit terms does more than repeal or rescind these provisions. it prohibits all legislative, executive or judicial action at any level of state or local government designed to protect the named class, a class we shall refer to as homosexual persons." the point is that amendment 2 was unprecedented, it was extraordinary, and whether it had repealed anything or not, standing essentially in its own shoes without regard to what the history behind it was, it was unconstitutional. it would have been unconstitutional if it had singled out and made a stranger to the law any class of persons. again, your honor, thank you very much for your indulgence. >> thank you very much. thank all of you for a fascinating argument. the court will stand adjourned. >> all rise.
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[indiscernible] [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2013] >> we just heard arguments at the court of appeals. the same-sex marriage cases happen tomorrow. we are going live now to outside the supreme court. dozens of people are waiting in line for tickets. the first people in line have been there since thursday. as we just mentioned, the
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california case will be heard tomorrow. with thehearing defense of marriage act will be wednesday.
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>> as we look on the steps of the supreme court, what you are seeing on the face of the building is a trait covering scaffolding. a piece fell off back in 2005 and the buildings are undergoing restoration. as the court is hearing the arguments tomorrow, a couple of rallies on the same-sex marriage issue appeared at 8:30 a.m. eastern, we will be live at a rally for the pro game marriage
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group, united for marriage, on c-span2. a little later in the day, a rally for the national organization of marriage, a group against gay marriage. tonight, justices will hear the 8allenge to the proposition smarm morning. then reaction with your calls and tweets. wednesday, we will also have the same day audio of the defense of marriage act for the court. >> tonight, called a bigamist jackson apparent heart attack before andrew jackson takes office. her niece becomes the white house hostess but is later dismissed as fallout from the scandal. during the next administration, joke van buren.
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we will include -- ange halflica van der and. we will include your comments live. -- lieutenant-general dana k. chipman spoke last week at furman university. he spoke about same-sex marriage, combat, and set patrol salt. -- and assault. this is under an hour. >> one of the hallmarks of the american democratic experiment and one of the hallmarks of our constitutional tradition is that, for centuries, as a republic, we have debated in our public policy and in our law fundamental questions that go to the core of our values and our
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american identity. we debate the meaning of freedom of religion and the establishment of religion. we debate the meaning of freedom of speech. we debate what equality means and how it translates to equality on issues of race, gender, and sexuality. we debate the role of different branches of government, the role of the president as the commander in chief, and as the head of the executive branch. and the roles of congress and .he roles of the courts as much as they are contentious and changing in the general rinas of american life, they must in turn be translated and interpreted and applied to our armed forces. while it is sometimes true the political decision, the social
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policy decision, the legal and constitutional decision that emerges in a civilian arena, is transferred in exactly the same manner to our military. there are times when it is not. there are times when the particular necessities of national security or the particular intensity of the organization and values and mission of the military require some just -- adjustment. exactlyot be adopted in the same way in the context of our military. -- deeply grateful to the armed forces of the united states. not just for all they have done to preserve our national security, but for the extraordinary commitment over history, despite many ups and downs, the commitment to our fundamental values, to our
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commitment to the rule of law, to our conceptions of due process, and to the constitution of the united states itself. we are fortunate to have with us, as the professor has already noted, one of the american leaders who was in one of the most pivotal spots in our , lieutenant-general dana chipman. he has had a distinguished career in the service of the united states and as a lawyer. after finishing his commission, infantry oftry -- the west point, he went to the stanford university law school and got his ph.d.. he then went on to receive other academic degrees, including a master of law and military judge advocatee
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general school and a studies degree from the united states army war college. he has had an extraordinary career within judge advocate general's corps and has been deployed in a variety of operational and staff positions, some of them among the most important in our recent history. these include the deployment to the first special forces operational detachment, his appointment to the joint special operations command, united states special operations command, and the united states central command. in 2001 and 2002, he was deployed as a special legal adviser to the joint operations task force for operation and enduringeedom -- freedom in afghanistan. he served as the head of the judge advocate general center law school in charlottesville.
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and now he has taken the extraordinarily important position as the judge advocate general of the united states, a position that carries with it the rank of lieutenant general. there is no one better qualified that i can imagine to help us evolvingd how the ever conceptions of equality in matters such as race, gender, and such well the are now being applied in the context of the united states military. so please join me in warmly welcoming not only one of the country causes great military and legal leaders, but also, i am proud to say, a parent of a furman student, his daughter. you are allowed to clap on that. [applause] please welcome lieutenant- general dana chipman. >> thank you for allowing me to
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come down here to escape the sequester environment in washington d.c. thanl not speak any longer 30 minutes because i would like a chance for you all to ask questions. you can ask me a question about anything. to ask whatever you like. i would like to tell you first tell i came here. in 1970. i came here as a 12-year-old and lived right across the street from furman university on chapel road. i was a seventh grader at duncan chapel elementary school. coming from orange county, california, into a recently desegregating environment here. a different time of year i went to duncan chapel and we had first through fifth grade and the seventh grade, because the sixth graders were bused else -- elsewhere. kid fromsthand from a
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aren't county, california, i saw a little bit of the different environment as greenville was going to the challenges of racial desegregation. that was my first foray into issues. in the skirmish in world. i saw that institution -- discrimination world. i saw that institution struggle to decide how to accommodate women at a school that was probably all male and where the administration was not all that excited to opening up west point to women. i got to see how that evolves over the years. then again, a different aspect 1992 with billn
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clinton. one of the things before he took office, he said, i will figure out how to open up our armed forces to homosexuals and lesbians to serve our military. time, that ultimately crafted the policy of don't ask, don't tell, which has been overturned now 20 years later appeared i got a chance -- later. a chancehance, in -- to see how these played out in a different area. all these experiences were formed -- performative as i formed my position now. for the last four years in particular, we have gone through extraordinary changes in social policy. it is that time i would like to talk about tonight. if i could have my next slide, please. i will walk around a little bit.
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i would like to start with i thinkne hob -- everything important comes from her. this is one of the great american cartoons. what i wanted to and focus on. --t i like from the cartoon there are things i may not be able to change, but i will still work hard. there are things that ought to be changed. i will apply the same effort to trying to change those things i cannot get over, i cannot get beyond the next step. yet they are worthwhile. it is that attitude and focus that underlies some of the work that is done in this area as we
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seek to change our policy on social issue. i am mindful as i am here with you tonight. i read a middle school book report. it goes something like this. a long timer lived ago. he was a general. he made many long speeches. they kill him. [laughter] that and hopeful might end will not be quite like caesar. i will not speak longer than 30 minutes. we will get there. like to talkould about, four different areas in particular. i want to talk about our religious accommodation policies, and the challenges we in theit applies military context. i want to talk about sexual assault issues we are facing now. that is one remaining, really
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fundamental area of inequality we have to address if we are going to fully integrate our ranks to all those individuals who would like to serve the nation. then i will talk a little bit about some of the other two areas i think we have made some progress on in the last four years in particular. same-sex benefits with the appeal of the last, don't ask -- don't ask, don't tell. some of you do not know what the general is. i thought i would at least tell you who they are before i go into my remarks. 1775, george washington appointed the first judge advocate of the army. he made 6% rate of return annualized since then. i think i'm underpaid. he was appointed as a tutor in the army and he served. neither a judge, nor an
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advocate, nor a general. all three of those roles reflect what we do in our practice. this was the trial of a major, a british spy in the revolutionary war. this is one of our judge advocate's employed. have about 5000 lawyers, your tax dollars at work. probably the second largest law firm right now. is about 10,000 people. you think about that. glad you are paying your quarterly tax payments promptly. we have a lot of support out there. that is why there are challenges. legalactice involves assistance and contracts, fiscal law, operational and international law, we provide
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administrative and civil law, and administration. it is a practice i have enjoyed for 27 years now. richly wills boarding and very challenging. -- rewarding and very challenging. here is the first thing i'd want to talk about. secretary panetta's opening of the combat of women. what is significant? i think what is significant is, do you think we did this out of pure, alter richard -- altruistic reasons? i do not think so, either. was,f the problems we had with our operations in afghanistan and iraq, we needed more combat medics. the great signature achievement of this war and conflict has been a better capability for medical care at the point of
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injury. if you look at what our medical establishment has done over the 12 years, we are saving people , that weds on like any have ever seen. our medics are women. we had to figure out a way to get that additional talent to the battlefield. the we did was abandoned combat assignment restrictions that had previously prevented women medics to serving at the point of injury. that is one reason we did that. the second reason is, believe it or not, there are not as many folks who are qualified to join our armed forces these days. it is about maximizing talent, having opportunities for military servers, for women, who can complement these skills in a broad range of different areas. do i think there will be a lot of women who want to serve in the squad? i do not think so i do not want
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to serve in an industry -- infantry squad. the idea is we will mac supplies -- maximize the talent available. you can meet this standard, you serve. this is really about how do we get our share of talent in a global marketplace competing with talent? panetta and the administration decided we would open up more opportunities for women to serve in combat arms and front-line units appeared we are studying it right now. in much the same way we had to study the issue of integrating women at west point, we are going through the analysis of, what are the criteria? for example, if you are in an infantry squad, one of the things you might have to do is drag a 200-pound person for four seconds over a distance of 20
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yards. that is silly. what is that about? hurt or shot,ts you would want to be able to drag that person to the next point of safety. seconds, 200 to 5 pounds. if you can meet that, you can be in the squad. by a innovative in part fundamental fairness and that we need to open up opportunities for those most qualified. frankly, it is a personal effort in a time where there are other opportunities to serve. byt effort is underway and september 2015, we will have made decisions on opening up these additional specialties. there are courses right now that women are pursuing. the school is probably our most elite light infantry.
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is not yet open to women, but i suspect it will be shortly. the staffers school, a combat engineering school, already open to women. they have performed magnificent dly.s -- magnificent le ly.magnificent by january 2016, we have to determine which of our specialties will remain closed. the idea is that those that apply will be gender-neutral. if women can meet the standards, they can. it will be an interesting evolution, from my perspective. the israeli force, the idea of women across their ranks and other countries, our allies, have done the same and opened up specialties for women to serve. at the end of the day, i think it is a fundamental decision for
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america to confront the idea that not only our sons but our daughters will be fighting at the tip of a bayonet knife fight. that is a tough thing for me, as a father, a to still think about. you all may approach that vividly. -- differently. our demographic has changed. this is the reality. you think about what is going on across america at the top of the pyramid. on the army staff, we have got 12 of the three-star generals, the folks who sit around a table and make most of the policy decisions. of our 12, three are women. we had long times in our history where we did not have a single woman at the three-star level appeared we have had a four-star commander who is female who got three stars serving out. more just showing how much that ranked is opening up based
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on power. defense contractors in the washington region right now, the ceo's are women. recognize this has been an explosion of talent across top leadership opportunities. last week, i had the fortunate -- i say fortunate with tongue-in-cheek. on this -- on the committee, they are women. recognize, again, this has been a significant change and themotivation is to reach best and brightest, to retain the document -- estimate capital you can find across the enterprise. can i have the next slide? same-sex benefits. this is an issue that, frankly, an interesting time. i look at how this issue is playing out in washington --rett this is showing me
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washington. this is showing me what will happen. in the fall of 2011, it was pretty much a non-event. aople said, it will be significant change. it will be an upheaval of massive social proportion. has been a non-event. many of us knew that. we knew that going and. -- in. this is nothing. you all understood this for a long time. it is not about who you are with. it's just about the quality of the person you are. we have seen that play out. has been an interesting change to see the fallout from that. notwithstanding, the repeal of the do not ask, do not tell policy, we still have this defense of marriage at issue. a week from today, the supreme
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court will hear an argument for the case. will be an extraordinarily significant event. what i am seeing right now will shake out in the washington media. the choices of supreme court justices will describe the demographics of our nine justices. some are married, some have adopted children, some have no children. the defense remaining under the doma is the idea that a marriage between a man and woman is the only vehicle in which you can have procreation, the appropriate role to raise a child. that really is the strongest argument for those who still seek to retain doma. see in the post this week is a series of articles designed
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to strike down the idea that procreation is the only thing worth saving. the family choice of nine supreme court justices. we have a hold of the views of the citizens on same-sex marriage that 81% of those surveyed are in favor of allowing same-sex marriage. profile of the same-sex couples .t the center of a lawsuit another profile of a significant republican congressman who came out and said, i am in favor of gay rights. with a child in college. today, nfl veterans. i am thinking, the national football league has to be brought in to justify same-sex marriage? we have just about lined up every constituency i can think of in support of this. i see the effort ahead.
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man, i fullyting expect doma will be struck down. the issue has been devolved so rapidly and has gained such support across a broad range of constituencies that i predict doma will fall. that will be ok. we will be able to move along from there. slide, please. the issue i have seen some effort done, and this has been an interesting one to see ball over many years. i came to the army in 1976. servedl soldiers that and they had turbins. if you know anything about the quality of seek an gurkha soldiers, i said, we can live with this.
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sometime along the way, we thought, we no longer allow people to have different apparel and different uniform standards. the idea that you could serve as a siek and honor your faith wearing a turban, that was denied. at some point, there was a supreme court case involving a rabbi. the idea was, if you could wear a yarmulkes and hide it under normal military head gear, that would be ok. under that decision, we then had jewish rabbis and others serving openly. that was fine. that was the only accommodation made. to fight way, we start this war over in saudi arabia. following the gulf war invasion in 2003, the army started saying, if you are a woman serving in saudi arabia, you need to wear and a buy out off
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the base. it is the long cloak muslim women typically wear in public. said, notnant colonel so fast. i am an officer. i am serving the nation. my male counterparts do not have to serve -- where any accommodation for a uniform. i do not want to wear that. nogress passed in 2003, more. the statute was passed. they said, you cannot force and encourage and persuade women to wear one if they do not want to. then i saw that play out. interestingly, then, we had in 2001 the operation freedom in afghanistan. i was the -- the first thing every one of those guys did, they grew big bushy beard spirit i said, wait a minute. -- beards.
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i said, wait a minute. operators said, we need to blend in. we need to have the beards so we can better serve and get more credibility with the afghans with whom we are dealing so the men wore beards. it has been an interesting thing to see them. in 2009, when i assumed my current position, we had five religious accommodation requests granted. two were with muslims wanted to wear beards, two were with orthodox jews who also wanted to grow beards. then we had a woman who wanted to wear the headdress. the air force granted the right for her to wear that. it has been a little bit of a challenge in the sense that, from -- when the congress passed the law allowing to wear it could not affect
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how uniform appear otherwise. the other services became unhappy about this. she was banned to her specific order in the pentagon. when she went to other areas of the pentagon, she had to remove it. we are fighting through now, what is the way we will deal with these religious accommodations and apparel requests. that remains as the last frontier. area,lays out in another as well. not only do you have the grooming and apparel issues we have to work through. the idea of a free exercise clause. a chaplain in the the same sexh benefit, the demise of don't ask, don't tell, and the right
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to have a sexual orientation of your choosing and serve openly, what is your role as a military chaplain? we have chaplains from each of our different places across the dod. you might be a rabbi and yet you are having chaplain duties requiring you to administer and take care of the needs of everyone in your unit, not just your own faith group. if you have got a requirement to perform council into a couple looking for counseling on same- sex couples, and your conscience prohibits you from doing that, what is your role as a military chapel? as a chapelr duty and judge advocate. your duty is you provide the legal assistance needs of everyone and you do not discriminate based upon what is the nature of the issue? we are seeing some of these issues play out with the rules of chaplin and civil ceremonies
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and what we have said is, you do not have to perform an marriage or a marriage equivalent ceremony with the tenets of your ecclesiastical faith would not support that. we are working through those issues and how they would play out. judge advocates, as far as i am concerned, they will meet the needs of everyone who has an issue. that is what we see right now. can i have my last slide, please? this is the last issue i think is particularly fundamental right now. seeing a number of sexual assaults i think are inconsistent with the idea we have made -- this is last week appeared we had a panel of all the judge advocate general's.
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the senator from new york. our were inquiring about, courts martial system and how we are handling allegations of sexual assault. ,t is interesting to me because the system we have, it was really a creature adopted in 1950 following world war ii. students of who are history may know in world war ii, we had 16 million men and women in uniform. conducted 2mber, we million court's marshals. a fair amount have been disciplined in the record a fair amount have had issues for commanders to resolve. the consequence of that experience was the idea that we would rein in commanders discretion and handled ax with discipline. dwight eisenhower testified andre congress in 1948,
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other senior leaders talked about what is different about our system. what is the nature and how does it play out. that is the result. that is now under attack because what our critics are saying is there is no longer a need for the specialized system of military justice apart from our legal systems. you are providing too much of a role for commanders and the abuse of discretion and how you handle these. in capitolng peddled hill right now. we have largely got away from a commander justice system. hchr looked at the commanders as having too much discretion to abuse the rights of soldiers. we are getting the opposite, that our commanders are not adequately enforcing the rights of victims.
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to me, thearrative, fundamental issue is, if we are going to achieve full equality for women in our armed forces across the ranks, it would be because we have opened up all of our assignments to women, we have set the conditions for them to serve, and we have ended the descriptions -- restrictions on sexual orientation as anything to do with your ability to serve professionally, we have set the conditions to and harassment in the ranks because we think sexual aura -- sexual assault, we have adequately made a culture that deters it. when we do those four things, we will have achieved an environment where all of us will serve equally in the armed services. i think you for your attention and i will take your questions. [applause]
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>> stand wherever it's it's you and i invite anyone in the question andose a i particularly encouraged our students. >> [indiscernible] you talk about same-sex citizens -- what role do you think public opinion has played? [indiscernible] >> the question is, what role does public opinion play in shifting our approach i think public opinion plays this role
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-- approach. i think public opinion plays this role. in 1992, when we had a policy that ended up as don't ask, don't tell, president clinton came in and one of the objectives of the administration -- colin powell was against. charlie from northwestern. very well respected. he had done the demographic data and research to show why this policy was appropriate and why america had not yet evolved on open service by homosexuals. think public opinion reflects on part the change of that perspective. this young regeneration has grown up with the idea that this is not a matter of choice. this is not about any of that. this is about allowing people to be who they are.
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what we have seen is public opinion both drives that shift and follows the shift to provide greater evidence that we can change the policy. change int had any the legal regime, frankly. if you look at the civil rights act, it still does not provide sexual orientation. -- it is the pace of change that struck me as significant. >> yes? >> [indiscernible] on how the [indiscernible]
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how [indiscernible] movie such as "zero dark thirty" [indiscernible] what i am wondering is how the military [indiscernible] ok, so the issue here is, what is the uniform military role in response to those conditions that ultimately enhanced interrogations' techniques, water boarding, whatever you want to call it. one of the reasons i am wearing a third star now is the results of senator gramm's emphasis on allowing generals to have a seat at the table in some of the policy decisions that were made that influenced the action of the administration right up to
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9/11. you were saying, wait a minute, you have good experience in how to apply law of war in the geneva convention. that voice was not being heard as stridently as it needed to be within the policy-making apparatus that was considering the changes after 9/11. in the pentagon, you have a voice. never changed the law of war manual. the land was published in october of 1956. rules have not changed much. the geneva conventions has been around for awhile. we understand how to apply those. i do not think there was ever a tacit approval by the military establishment of those techniques. it affected us so fundamentally in terms of perception, credibility with the international community. i look at the ongoing challenges
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we willn guantanamo, never be able to get beyond the taint. it is a fundamental problem. wonderful general, a officer, the chief prosecutor. he is doing everything he can to show these are legitimate proceedings, transparent, and follow the rule of law. fromommentary we get anyone who has been involved with the issue, you cannot fix it. no, --ot want, guantanamo, then where is it? new york city? there has got to be something. >> i would like to ask you a question about your professional identity. the american military has always deployed people
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professional in other senses. you have ordained clerics, doctors, and lawyers. i am wondering to what extent you have seen your identity as a with your identity as an army officer. to what extent the values and goals you play and have been trained to play and faithful to your whole life in the legal profession, sometimes posed difficult conflicts in the very difficult culture of being a distinguished member of the armed services? >> that is a great question. proud of the fact i am a member of two distinct professions. the law and the army. i take professional pride in both. there are times when i think my role as a legal profession was not fully appreciated by my client, the commanders i serve, who say, you lawyers always get in the way. by you just keep saying no?
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how about helping me do what i can do. that is supposed to be our approach. legalea is, as a professional, ultimately, i have a loyalty to the client. that client might be bad robert, g, -- bradley, and if you have a client, your ethical obligation is a little bit less clear than the legal profession, who my client is as an army officer. it is very clear under my professional responsibility that my ultimate loyalty is to the department of the army, and not any individual. the commanders i advise sometimes do not like that. they will say is, i thought you were my lawyer. my response is, i am not your lawyer. my client is the department'. the only oath i took is to the constitution.
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that is one thing i see. >> that is a great answer. other questions? one over here and one over there. we will take both. >> thank you again for being here. [indiscernible] sexual assault and military. i was wondering if you thought her culture has influence sexual assault within the ranks and to help prevent that now and in the future. >> there are two fundamental issues that we will fail if we do not salt. sexual assault is the first one. the second one is suicide. i will not talk about suicide. to answer your question, here is what i see as part of the challenge. when you come into the military, we tried to have you abandon a personal identity so you can adopt the sense of being
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part of a larger identity that is more important than the individual. in many cases, the sexual assaults are occurring in the first 90 days of service. to 25e it with the 18 year-old crowd. pattern in sommon many of these cases. i came into this army thinking i was joining a team, a team that would take care of me and look out for me. now i have a conflict in reporting a fellow teammate is reporting me. they have a hesitation to notify the chain of command that is trying to bring you into the values we think our program to the military service. we have got to get beyond hesitation. this is an act of an assault. i cannot be any more planes than that. -- plain than that.
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year were 19,000 a estimated assaults. 3000 were reported. never those assaults were reported. how do we change the culture so that people understand it is my duty to report it. ? the criminal in the ranks as not share the values i employed. we have to be able to change the culture to ensure we can address the problem. >> thank you. >> i saw a hand over here? >> could you tell me what the major differences are between the civilian all -- civilian law and the regimen law? >> ok. we have under the uniform code a isies of specified -- there a criminal code. we have a series of procedural
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rules the same way at it -- every jurisdiction has them. we follow the federal rules of evidence. we called on the military rules of evidence, but they are the same. devolved to keep pace with the federal rules of evidence. that is not a change. what is different is we have a role of commander. no role for the a governor, or the president, there is no role for an elected to exercise military justice. procedure. it in our system, i would take a case and we would have a pretrial investigation. i would take that case to the commander to say, commander, this case deserves a general court-martial and the commander
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could look at me and say, judge, i disagree. i do not think there is evidence that would support that. myave not had that happen in professional career. it did happen here about two weeks ago in italy. we are paying a pretty significant price for that decision by a commander who ignored the ruling of the judge who said this trial was properly conducted. verdictmander set the aside and released an officer after four months of serving a four sentence. -- serving a sentence. it is a case where we think the trained lawyers should be making
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the decision. i have visited our allies in the u.k. and australia and canada. all of whom have got away from the system we have. none of those countries deployed 300,000 men and women, where there is a need for justice that can be proposed swiftly. our system has to be portable so we can ensure forces are deployed. we have to have that commander, from my view, remain in the system. we just have to guide their discretion appropriately. one of the things i think we will change here, and congress will help us, the idea that the commander can overturn the judge's verdict. question in the back, i see. someone politely deferring to
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someone in front of her. how civilized. >> i noticed in your discussion, one of the previous questions, you made a lot of talk to -- on reports ofease sexual harassment. [indiscernible] advocate 19,000 [indiscernible] >> there are two parts to the problem here there is the problem of prevention and the problem of response. so far, much of the interest has been on the response part. many of our critics say, what you have to do is prosecute your way out of the problem. if you prosecuted a number of cases, this problem will go away. i do not think we can prosecute out of the problem. the idea ofo change
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prevention. the crew ofent arrives for training, we say, these are the values of an army soldier, these are the methods you have to report inappropriate advances and conduct. we assign bodies and have a buddy system. we have to make the dormitories a safe environment for the met -- men and women. you know when there is a predator, you know when you are setting up somebody for a situation in which a predator can take advantage. is the tension between the roles of the chain of command can take to change the environment, and that we are all adults and we can make choices. we are having a hard time with that balance. we have to reduce the number of overall incidents.
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i do not know. i think some of the problem is on college campuses, as well. we are transparent and we have a challenge of getting some numbers comparable period 18 to 25-year-old is a different demographic. >> our time draws short beard i will take advantage of your being here to ask you one of the questions always -- that always most intrigued me. famous moviesf of and novels and plays. though, rarely actual occurrences in actual trials. can you describe the acute dilemma that occurs, morally and legally, when a subordinate is ordered to do something by a superior that is manifestly illegal, sometimes in a dramatic circumstance with a prisoner or someone else? explain a bit about the moral
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and legal conflict that can exist when you are issued an illegal order. >> what is your responsibility, what is your role in terms of executing an order othat is clearly illegal. sometimes, you exercise it at your peril. you better be sure the order you were given is in fact illegal. each of us has an obligation to follow the orders of the officers and those appointed over us. when i get an order from a commander, initially, my presumption should be, that is a lawful order that was properly considered and executed and issued and i should do that. that, there are orders where you know they are clearly illegal. some of the prosecution we have seen over the last few years involved violations where, for wasple, in one case, there
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a tension where a commission officer came back and said, i told you, no prisoners. what did you not understand? that is a clearly illegal order. you have to be able to take a prisoner if somebody is wounded and out of combat. they have to be able to have a detainee. what is my role as a soldier? i go back to the individual to say, sergeant, lieutenant, captain, can you tell me again what the order was? i want to be clear in my own mind that i understand what the officer expects me to do. if i am satisfied it is illegal, i have the obligation to go above that individual and say, i received an illegal order. does not have to be just the commander appeared to be the inspector general, the judge advocate, somebody else, a different commander. you have an obligation to go forth and reports that illegal
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order. say, the bosky me that order so i am ok. -- the boss gave me that order so i am ok. we have aior, standard where we should have known it is illegal. . have a duty to clarify that >> thank you for your service to our country and thank you for the wonderful presentation this evening. thank you very much. [applause] thank you everyone, enjoy the evening. >> coming up on c-span tonight, the defense department general counsel jeh johnson.

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